Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3275/21 in S.J.No. 235/19 in 1 Order.
Summary Suit No. 383/19.
MHCC010105052021
Presented on : 16-12-2021
Registered on : 16-12-2021
Decided on : 08-11-2023
Duration : 1 years, 10 months, 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3275 OF 2021
IN
SUMMONS FOR JUDGMENT NO. 235 OF 2019
IN
SUMMARY SUIT NO. 383 OF 2019
Ashish Rajnikant Vibhakar )...Plaintiff
Versus
Kamlesh Hakumatrai Thakur )...Defendant
Shri Rahul Singh, Advocate for the defendant.
Shri Gauraj Shah alongwith Smt. Panti Desai, Advocate for the plaintiff.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 8th NOVEMBER, 2023.
ORDER
1. The defendant has taken out the notice of motion to
transpose and convert the Summary Suit No. 383/2019 into the
Commercial Causes Suit and transfer the same to the Commercial
Court. The defendant also prayed for grant of stay to the further
proceeding such as summons for judgment etc.
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Summary Suit No. 383/19.
2. It is alleged by the defendant that the plaintiff and
defendant were school friends. In 2015 defendant was approached by
M/s. Links International. The said company were in process of
developing a mass housing project in Africa. The defendant thought that
plaintiff also able to participate in the development programme. At the
relevant time defendant asked the plaintiff earnest money deposit to the
extent of 2,00,000 U.S.Dollars as the cost of project would around 6.25
million dollars. Accordingly, plaintiff paid amount to the defendant.
Defendant has also repaid it, but amount of Rs.63,20,000/- remained
outstanding as per the contention of the plaintiff. The allegation of the
plaintiff of giving loan to the defendant falls under commercial
transaction. Therefore suit needs to be transferred to Commercial Court.
3. Plaintiff denied the entire contention of the defendant. The
contention of the plaintiff that he has given a hand-loan to the
defendant being a school friend. Therefore, the hand-loan transaction
did not fall under the commercial dispute. This is a hand-loan, therefore
this Court has jurisdiction to try and decide the matter.
4. The advocate for the defendant relied on the ratio laid
down in the case of Shipping Corporation of India Ltd. V/s. Machado
Brothers and Ors. in Supreme Court Civil Appeal Nos. 1855 and 1856 of
2004. Therein the Hon’ble Apex Court held that -
“We affirm the proposition that for making the right or
remedy claimed by the party just and meaningful as also
legally and factually in accord with the current realities, the
court can, and in many cases must, take cautious
cognizance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness
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Summary Suit No. 383/19.
to both sides are crapulously obeyed.”
5. The contention of the defendant that the dispute in
between the parties is commercial dispute and as defined under Section
2(1)(c) of the Commercial Courts Act, 2015 the contention of the
defendant that plaintiff still liable to pay more than 4,00,000 to him.
The plaintiff has stated the half truth of the facts of the matter. He
suppressed material particular. Therefore suit between the parties in
respect of specified value in relation to commercial dispute. Therefore,
this court have no jurisdiction to try and decide the same.
6. Perused notice of motion, reply filed by the plaintiff,
affidavit in rejoinder filed by the defendant, affidavit in sur-rejoinder
filed by the plaintiff. Heard both advocates at length and therefore
following points arose for my determination alongwith my findings
thereon for the reasons enumerated below :
SR.NO. POINTS FINDINGS
1. Whether defendant is entitled for the
relief prayed ?
In the Negative.
2. What order ? As per final order.
REASONS
7. On going through the pleadings of the parties and on
hearing both advocates, I am of the opinion that the list is given in the
Commercial Courts Act, 2015 that which dispute falls under the
“Commercial Dispute”. In the “Definitions” clause the list of
“Commercial Dispute” is given. The Section 2(1)(c) of the Commercial
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Summary Suit No. 383/19.
Courts Act, 2015 given the list of transaction / dispute between the
parties which falls under the commercial dispute and liable to be
transferred in the Commercial Courts.
8. In case at hand, I have gone through the plaint, therein
plaintiff clearly mentioned that the defendant approached the plaintiff
for friendly loan of Rs.64,00,000/-. Out of it defendant repaid amount
of Rs.24,00,000/-. The defendant stated him that he is raising the loan
of 25 million and he has to show the USD of 200000 as earnest money
in his bank account. The plaintiff has paid the amount to the defendant
at the interest rate of 2% per month. The plaintiff paid the amount in
the bank account of defendant. So the defendant paid the amount to
the plaintiff including interest and at last he was in arrears of the dues
63,20,000/-.
9. On going through the pleadings of the parties, the
defendant has not filed on record any agreement so as to infer that
there was a commercial transaction in between the parties and plaintiff
is interesting in doing partnership business with defendant. The plaintiff
clearly stated that he has given a hand-loan to the defendant by
depositing in his bank. Defendant alongwith his reply not filed a single
document to show that the transaction in between them is a commercial
transaction. Therefore, in my opinion, the plaintiff’s pleading clearly
shows that plaintiff has paid hand-loan to defendant being his school
friend. The amount received by the defendant from plaintiff has nothing
to do with whether he invests in a commercial company or not. It
cannot become a commercial transaction. Therefore, in my opinion,
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Summary Suit No. 383/19.
defendant is not entitled for the relief prayed. The transaction in
between the parties does not fall under the definition of commercial
transaction mentioned in Section 2(1)(c) of the Commercial Courts Act,
2015. Hence, I answer point no.1 in the negative and pass following
order :
- ORDER -
1. Prayer clause (a) and (b) of Notice of Motion No. 3275/2021
stands rejected.
2. N/M No. 3275/2021 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 08/11/2023. Mumbai.
1. Dictated online on : 08/11/2023.
2. Placed for correction on : 09/11/2023.
3. Checked on : 10/11/2023.
4. Correction carried on : 10/11/2023.
5. Signed on : 10/11/2023.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 3275/21 in S.J.No. 235/19 in 6 Order.
Summary Suit No. 383/19.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/11/2023. 4.57 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 08/11/2023.
Judgment/Order signed by P.O. on 10/11/2023.
Judgment/Order uploaded on 10/11/2023.
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